Question: In QLD, is the pool maintenance operator at a strata complex required to be certified, qualified and or insured against any water born illnesses that arise due to their workmanship. Is the body corporate or pool maintenance operator liable if legal wrongs arise?
Answer: Assuming the body corporate was doing all that it reasonably could and could evidence this, there would likely be minimal grounds to state they were negligent.
In QLD, a pool technician that services and maintains a swimming pool must be licensed appropriately with the QBCC. A pool technician is responsible for the maintenance of the pool, i.e. replacing broken equipment and adjusting and balancing chemicals.
All pool technicians, whether operating as sole traders or a company, must hold the appropriate licenses and public liability insurance to cover any accidental loss, injury or damages.
Note, general cleaners used to clean the pool area and scoop out leaves etc, are not required to hold a license class but should not be responsible for maintaining chemical balances.
Regarding liability arising from a waterborne illness, this scenario would be trickier to navigate and could vary from case to case.
Firstly, to bring on a public liability claim against the body corporate (the pool owner), an individual would need to prove, through a doctor’s diagnosis, that they acquired the waterborne illness and it was transmissible through swimming pools.
Many illnesses can be contracted from many environments available to the public, i.e. public bathrooms, shopping centres, schools and kindergartens.
This alone would be a very difficult stage of the claim to prove.
If the individual (and their legal advisor) does indeed believe they have a basis for a claim, they would usually sue the body corporate (the owner of the facility) and anyone else involved in maintaining it (such as the pool technician, caretaker, hotel operator, building manager etc.). This scattergun approach gives the individual the highest chance of a substantial settlement from each party’s insurance policy without needing to go to court.
At this point, the pool technician would likely present their cleaning regime, the historical chemical balances for the pool and the work they have done, indicating that they had done all that was necessary to keep the pool balanced as the facility owner engaged them to do.
It is important to understand that the chemical balance of a pool can change levels overnight in QLD, with tropical rains diluting the chemicals and PH balances changing from enough users entering with sunscreen.
If the claim does make it to court, the individual will need to be able to prove that the body corporate failed a duty of care (acted with negligence) to minimise the reasonably foreseeable risks of injury/illness. Again, this will be a very difficult threshold, particularly if the body corporate can show regular maintenance invoices, pool chemical purchases, and a pool cleaning regime suggesting they did all that was reasonably practicable to minimise risk to patrons.
The courts would need to consider the inherent risks we as individuals accept when we use a swimming pool, such as the risk of drowning or illness from swallowing chlorinated water and if we inherently accept the possibility of illness from using a shared pool.
Assuming the body corporate was doing all that it reasonably could and could evidence this, there would likely be minimal grounds to state they were negligent.
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